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Sinclair v Creenaune

Sinclair v Creenaune

Case [2022] NSWSC 230 8 March 2022

Family Provision

Appeal

Limitation Periods

Admissibility of Evidence

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sinclair v Creenaune [2022] NSWSC 230
Hearing dates: 21, 22 February 2022
Date of orders: 22 February 2022
Decision date: 08 March 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders that the whole of the proceedings be dismissed.
(2) Orders the Plaintiff to pay the Defendant’s costs calculated on the ordinary basis of the proceedings.

Catchwords:
SUCCESSION — PROCEDURE — Family provision — Plaintiff, a litigant in person - Application by Plaintiff for adjournment of the hearing during the course of the hearing — Consideration of procedural history and the overarching purposes of Civil Procedure Act — Application refused
PROCEDURE - Where Plaintiff’s affidavits read but she declined subsequently to enter the witness box to be cross-examined — UCPR r 35.2 — Plaintiff informed of consequences of her refusal, namely retrospectively treating affidavits as not read, but she maintained that she was not prepared to be cross-examined without legal representation - Plaintiff aware before the hearing commenced that Defendant intended to raise credit issues - Plaintiff’s case fails for lack of evidence - Proceedings dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 66
Succession Act 2006 (NSW), Ch 3
Uniform Civil Procedure Rules 2005 (NSW), r 7.3, 35.1, 35.3, 35.6

Cases Cited:
Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Cairns v Cairns [2006] NSWSC 364
Cicek v Estate of late Solomon [2014] NSWCA 278
Collier v Hicks [1831] 2 B & Ad 663
Duraisamy v Sydney Trains [2019] NSWCA 269
Knorr v CSIRO (No 3) [2012] VSC 529
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
McKenzie v McKenzie [1971] P 33
Michael Photos t/as Phontos Legal v CBS Build Pty Ltd [2022] NSWDC 33
Pollock v Hicks [2015] NSWCA 122
R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Re H [2002] 1 FLR 39;
Re O, W, W-R [2006] Fam 1; [2005] 3 WLR 1191
Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92
Russell Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unrep)
Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
State Pollution Control Commission v Australian Iron and Steel Pty Ltd (No. 2) (1992) 29 NSWLR 487
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100
UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45

Category: Principal judgment
Parties: Donna Sinclair (Plaintiff)
Noel Creenaune (Defendant)
Representation:
Counsel:
Mr J Brown (Defendant)
Solicitors:
Duffy Elliott Lawyers (Defendant)

File Number(s): 2019/00383054
Publication restriction: Nil

Judgment

Introduction

HIS HONOUR: These proceedings involve the estate of Barbara Bernice Sinclair (the deceased), who died on 9 December 2018, and a claim brought by one of her, now adult, children, Donna Maree Sinclair, for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sinclair v Creenaune

Details

AGLC: Sinclair v Creenaune [2022] NSWSC 230
Case: [2022] NSWSC 230
Decision Date: 08 March 2022

CaseChat Overview and Summary

The case of Sinclair v Creenaune involved a family provision application brought by the plaintiff, who was a litigant in person. The plaintiff sought an adjournment during the hearing, arguing she needed time to obtain legal representation before proceeding with the cross-examination. The defendant opposed the adjournment, highlighting the plaintiff's awareness of the defendant's intent to raise credit issues prior to the hearing. The matter was brought before the court, which had to decide whether to grant the adjournment and allow the plaintiff to seek legal representation before continuing with the cross-examination.

The court considered the procedural history and the overarching purposes of the Civil Procedure Act. It examined whether the plaintiff's refusal to be cross-examined without legal representation constituted a valid reason to adjourn the hearing. The court noted that the plaintiff was informed of the consequences of her refusal, which included treating her affidavits as not read, but she persisted in her stance. The court weighed the plaintiff's position against the need for the proceedings to be conducted efficiently and the defendant's right to a fair trial.

The court ultimately decided that the plaintiff's case failed for lack of evidence, and her refusal to be cross-examined without legal representation did not provide a sufficient reason to adjourn the hearing. The court emphasised the importance of the plaintiff being aware of the defendant's intentions and the procedural history of the case. Given these considerations, the court dismissed the plaintiff's application for an adjournment and subsequently dismissed the proceedings.

Orders